Tallulah Morgan v. John J. Kerrigan, Boston Home and School Association, Defendant-Intervenor-Appellant, Kevin H. White, Etc.

These appeals present varied challenges to orders of the district court implementing a plan of desegregation for the public schools of Boston. The consolidated cases concern the remedy phase of litigation initiated by plaintiffs-appellees, representing a class of all black public school students and their parents, against, principally, the Boston School Committee and the Superintendent of Boston Public Schools. The liability phase came to an end in 1974 with a district court finding of substantial segregation in the entire school system intentionally brought about and maintained by official action over the years. Morgan v. Hennigan, 379 F.Supp. 410 (D.Mass.1974). 1 We affirmed, Morgan v. Kerrigan, 509 F.2d 580 (1st Cir. 1974), and the Supreme Court denied certiorari, 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975).

*406 While the liability issues were- being considered on appeal, the district court, after its decision on June 21, 1974, began its exploration of appropriate remedies. The period from June, 1974, to May, 1975, was occupied with the addition of parties to the litigation, 2 hearings as to the nature, scope and objectives of a plan, submission and criticism of various plans, consideration of all proposals and preparation of a plan by a panel of masters, and, finally, the issuance of a revised plan by the district court on May 10, 1975, followed by a Memorandum Decision and Remedial Order. Morgan v. Kerrigan, 401 F.Supp. 216 (D.Mass.1975). On June 17, 1975, we denied appellants’ motion for a stay pending appeal, Morgan v. Kerrigan, 1 Cir., 523 F.2d 917 (1975), but devised a consolidated and expedited briefing schedule, in which all parties have faithfully cooperated. During the summer of 1975 the court, counsel, school officials, teachers, parent organizations, and federal, state, and city agencies and officials worked intensively to prepare for the September school opening in compliance with the district court’s order, commonly referred to as Phase II. 3 The schools are now functioning in accordance with the court’s plan and orders.

The issues to be considered here are both procedural and substantive and require some further background of events. After hearings during the summer and early fall of 1974, the district court, on October 31, 1974, entered an order establishing guidelines 4 and date (December 16) for a plan of desegregation to be filed by the School Committee. Such a plan was prepared by the staff but, on the deadline date, the School Committee voted not to submit it. 5 It was, however, filed by the Committee’s counsel. This plan called for six districts, with varying learning approaches available within each district, and “magnet” or special purpose high schools, but left with parents the choice of schools for their children.

On January 20, 1975, plaintiffs submitted a plan, accepting the six districts identified in the staff plan of December 16, 1974, but proposing a mandatory allocation of students among the schools to achieve minority enrollments that were neither too small (e. g., a minimum of 29.4 percent in elementary schools) nor too large (e. g., a maximum of 60.6 percent in elementary schools).

Also on January 20, 1975, the Boston Home and School Association (Association) filed a plan which was based on the theory that segregation in certain schools was the result of “existing residential separateness” and a policy of neighborhood school assignments, rather than of any official actions of the School Committee. To support its approach, the Association offered evidence of demographic patterns, which the district court *407 refused to accept on the grounds that the evidence was irrelevant at the remedy stage of the case and that the issue raised by the offer had been litigated and finally decided in the liability phase of these proceedings. The court’s refusal to consider the Association’s plan is not in issue, but the Association’s contention that the court should reopen the proceedings to consider, for purposes of tailoring remedies, the impact of demographic conditions on particular schools is one of the principal issues before us.

The School Committee’s plan, finally submitted on January 27, 1975, see note 5 supra, also kept the six districts or zones, and allowed parents several options, ranging from electing to have their child remain in a racially mixed school, to choosing a citywide or zoned magnet school, to any school within the zone. Should the school chosen by the parents be dominantly black or white, the desegregative remedy would be a once-a-week (for elementary schools) or a once-every-two-week (for middle level schools) visit by paired black and white schools to a “third site” resource center for training and experience in race relations.

With these three plans on the table, the court appointed two experts to assist in evaluating plans and a panel of four masters to consider the plans — commencing with the School Committee’s January 27 plan — hold hearings, and “make recommendations to the Court”. 6 The masters held hearings for over two weeks, and, after hearing argument addressed to a draft report, issued their final report on March 31, 1975. The masters found the School Committee plan inadequate, in large part because of its reliance on parental free choice; rejected plaintiffs’ plan as being educationally deficient, unwieldly and arbitrary; rejected the December 16 plan as being vague and unduly burdensome to minorities; and proposed a ten district system, one being a citywide district with magnet schools and specially appealing programs, with each of the other nine districts and some of the magnet schools being paired with specific colleges, labor and business organizations for assistance in program enrichment. Mandatory busing was estimated by the masters to affect 10,700 to 14,900 students.

The court then called for hearings on objections to the masters’ report, which commenced on April 10. In the meantime, the court had called for updated enrollment data from the School Committee. The court issued its Draft Revision of the Masters’ Report on April 17, heard comments on April 18, and issued its desegregation plan on May 10. Its plan reduced the number of districts from the ten recommended by the masters to nine, redrew district lines, and reflected — on the basis of the new data — less racial disparity generally in school assignments than did the masters’ plan. The plan not only precisely set forth the new districts but called for changes in the school system’s administrative hierarchy, and established a system of community participation in district and citywide councils. The mandatory busing estimated by the court would affect 21,000 students. During this time of accelerated activity, the court also appointed an ad hoc committee of three attorneys to assist in obtaining support from colleges and universities, and ordered that school personnel meet and confer with personnel from the designated college or- university. Late in June the court authorized the court-appointed experts to resolve some remaining issues relating to facilities utilization, program allocation, and enrollment limits. Each of these actions by the court *408 has been challenged, as well as the court’s plan itself.

This skeletal recitation of chronology masks a year of increasingly intensive activity in collecting and updating data, preparing, evaluating, and amending plans embracing a wide variety of approaches, and, finally, devising procedures and taking action to put into effect a plan calling for a dramatically different educational system affecting some 80,000 students. The pressures of time, the problems of developing reliable data, the clash among radically differing approaches, the resistance of the School Committee, the sheer numbers of parents, students, teachers, and administrators to be informed and oriented were all part of the massive problems of implementation.

While we appreciate the labors that have taken place by all concerned, we also appreciate the necessity of giving the most careful consideration to the issues before us. Some are of large significance. Some are of little moment. For purposes of clarity, we summarize them, not necessarily in terms of importance, but in terms of their breadth and specificity.

A. Broad challenges to the court’s plan.

1. The School Committee contends that its free choice-third site plan was constitutionally sufficient and should have been adopted.

2. The Mayor contends that, the masters’ plan being constitutionally sufficient, the Equal Educational Opportunities Act of 1974, 20 U.S.C. § 1701 et seq., deprived the court of power to issue its own plan.

3. The Association contends that the court’s plan was erroneous because the court did not confine the remedy to eliminating the demonstrable effects of the School Committee’s unlawful actions.

4. The Association, the Mayor, and by implication, the School Committee, contend that the court’s plan is defective in not having given weight to the impact of the departure of white students to other schools outside the Boston school system.

B. Detailed challenges to the court’s plan.

1. The School Committee and the Association contend that the court erred in a mechanical resort to ratios. The May- or and the Association object particularly to the use of ratios in effecting minority assignments to the high standard examination schools.

2. The School Committee challenges the appointment of three masters and one expert and objects to the compensation of all four masters.

3. The School Committee objects to the court’s encroachment on its functions:

a. In specifying magnet programs;

b. In requiring the participation of colleges and universities;

c. In requiring the systematic involvement of a Citywide Coordinating Council and Community District Advisory Councils;

d. In requiring the hiring of additional supervisory personnel; and

e. In giving the supervisory power to court-appointed experts.

* * * * * * '

A. Broad challenges to the court’s plan.

Four sweeping criticisms have been leveled at the court’s plan. The simplest is that the School Committee’s plan passed constitutional muster and the court could not justifiably require more. A similar argument, taking another point of reference, is that since the masters’ plan was constitutionally sufficient, the court could not, by reason of the Equal Educational Opportunities Act of 1974, require more. The remaining two broad scale attacks do not assert a barrier to going beyond any other plan but rely on the necessity for making further inquiries into remedial issues before a final plan is implemented. One type of prerequisite inquiry would be to ascertain the prior impact of official segre-gative action so that the remedy could be restricted to removing that impact. The other asserted prerequisite would be an inquiry into the likelihood of “white flight” so that a remedy may be tailored which, by minimizing such flight, would *409 assure a maximum achievable co-education among the races.

1. Sufficiency of the School Committee’s Plan.

Upon a finding that a school system has been operated in contravention of the equal protection clause of the Fourteenth Amendment to the constitution, the burden falls upon the local school authorities to present a plan of action to the district court to remedy the violations. Swann v. Charlotte-Mecklenberg Board of Education, 402 U.S. 1, 16, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). Only on the default of the School Committee to proffer an acceptable remedial plan is the district court empowered to fashion a remedy adequate to produce a unitary school system. Id. The threshold question, then, in reviewing the district court’s action, is whether the rejection of the School Committee’s plan of January 27 was proper.

In determining the acceptability of a proposed plan, the district court must assess the effectiveness of the plan in achieving desegregation. Green v. County School Board, 391 U.S. 430, 439, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). The district court, applying this standard, rejected the School Committee plan stating that it “presented no more than a hope for desegregation in Boston”. 401 F.Supp. at 229. On review, we conclude not only that the district court’s assessment of the School Committee plan was proper, but that if the district court had accepted the January 27 plan, we would have been constrained to reverse. See Keyes v. School District No. 1, 521 F.2d 465 (10th Cir. 1975); Jackson v. Marvell School District No. 22, 416 F.2d 380 (5th Cir. 1969).

The plan submitted by the School Committee was, in summary, a freedom of choice plan supplemented by magnet schools and third site resource centers. The school assignment process was to be based upon a series of options available to the students and their parents. Starting with the option to remain in the school attended in the previous year if it had been desegregated under Phase I, the student could choose in succeeding options to attend a citywide magnet school, a zonal magnet school, a school in which his race is in the minority, and finally, any school in the zone. At the end of this five step, seven week process a review committee would determine a course of action to deal with over-subscribed schools. 7 In the event that schools remained “racially isolated”, defined by the school department as more than a 15 percent deviation from the racial ratio for that level in the zone, the plan provided for mandatory student participation in resource center activities. The resource center proposal called for integrated educational experiences at a third site, once a week for elementary students, once every two weeks for middle school students and a human relations course for high school students. The entire plan rested on student and parental choice to desegregate the schools.

It is well established that freedom of choice plans to desegregate school systems are not per se unconstitutional. Green, supra. In order for such a plan to be constitutionally acceptable, however, it must promise to be as effective in achieving a unitary desegregated system as any alternative and feasible plan. Id. Freedom of choice has a long history of failure in achieving desegregation both in the south, Swann, supra; Monroe v. Board of Commissioners, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968); Green, supra, 8 and in other parts *410 of the country, Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972) (Las Vegas); Spangler v. Pasadena City Board of Education, 375 F.Supp. 1304 (C.D.Cal.1974). To be sure, it may be argued that voluntary plans were less promising in the South than in the North, as segregated dual systems were deeply entrenched there, having had an express legal basis. Yet as the district court’s findings indicate, Boston had gone far in the creation of a de jure dual system. Boston, moreover, for ten years had a policy of open enrollment, followed by a controlled transfer policy riddled with exceptions. In an earlier stage of the present case the district court found that this policy served to increase, rather than decrease, segregation in the school system. Morgan v. Hennigan, supra, 379 F.Supp. at 449-59.

The School Committee contends that its plan, although founded on freedom of choice, held promise to achieve desegregation due to the heavy reliance on magnet schools and alternative program schools — some fifty in number. Like freedom of choice, the use of magnet schools to achieve voluntary desegregation has failed elsewhere, Bradley v. Milliken, 484 F.2d 215, 243 (6th Cir. 1974), rev’d on other grounds, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974); Kelly v. Guinn, supra; Spangler v. Pasadena City Board of Education, supra; Dowell v. Board of Education, 338 F.Supp. 1256, 1264 (W.D.Okl.1972). Compare Hart v. Community School Board, 512 F.2d 37, 54 — 55 (2d Cir. 1975). Although Boston has had experience with one school which offered a specialized program and achieved a racially mixed student body, 9 we must agree with the district court that schools offering programmatic alternatives, while a useful supplement to an otherwise adequate desegregation plan, could not realistically sustain the burden of achieving desegregation of the Boston city schools. 10

Finally, the School Committee plan to remedy “racial isolation” with part-time integrated resource centers added nothing to the effectiveness of the overall plan. The objective sought to be achieved in a remedial plan is desegregation, not interracial experience or racial balance. Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974). Accordingly, similar part-time programs have been categorically rejected elsewhere, Keyes v. School District No. 1, supra, 521 F.2d at 477-79; Arvizu v. Waco Independent School District, 495 F.2d 499, 503 (5th Cir. 1974); United States v. Texas Education Agency, 467 F.2d 848, 859 (5th Cir. 1972), and must be rejected here.

Against this historical background which promised failure for every feature of the School Committee plan, it is inconceivable that anyone, the School Committee members or the court, could believe that the plan would be effective in eliminating and guarding against officially imposed segregation in Boston. 11 *411 The district court, therefore, was clearly correct in declaring the School Committee in default of its obligation to present a constitutionally adequate plan. It was the district court’s unquestionable duty to utilize all the resources available to it as to fashion expeditiously a remedy that realistically would produce a unitary school system. Swann, supra.

2. The Constitutional Adequacy of the Masters’ Plan and the Applicability of the Equal Educational Opportunities Act of 1974.

The Mayor’s principal attack on the court’s plan, essentially joined in by the Association, is that, since the masters’ plan was constitutionally sufficient, the court was without power to require more busing than that contemplated by the masters. The source of this alleged limitation is the Equal Educational Opportunities Act of 1974, 20 U.S.C. §§ 1701-1758. The Act manifests an intention of Congress that mandatory busing not be ordered to a greater extent than is required by the constitution. Section 1712 states that a court shall “impose only such remedies as are essential to correct particular denials of equal educational opportunity or equal protection of the laws.” 12 Section 1713 requires a court to consider, make specific findings about, and adopt a series of less onerous devices before requiring busing. These include school assignments close to home, transfers which would improve racial balance, revision of zones, and the construction of new schools and magnet schools.

The Mayor’s argument proceeds simply: the masters’ plan contemplated mandatory busing for 6,100 fewer students of the 84,000 total student population than did the court’s plan; the court did not find that the additional compulsory transportation was required by constitutional necessity; and comparison with other cases demonstrates that in fact the masters’ plan was constitutionally sufficient; therefore, the court exceeded its powers. 13

*412 The masters filed their final recommendations on March 31, 1975. On April 10 the school department furnished new statistics on the size and racial composition of the student body, on the basis of which the court modified the recommended plan. As noted by the district court in its May 28 order denying a stay, “the masters’ report and recommendations contained the key elements and formed the foundation of the plan promulgated by the court.” The most significant change effected by the court was a change in the number of geographic districts from nine to eight. The appellants assert that this change required more busing than the masters’ plan would have required had it been updated to reflect the new figures. While this basic factual promise is open to some doubt, we need not rest our decision on such a necessarily elusive determination. 14

We proceed to examine the district court’s duties and powers, as they are affected by the Equal Educational Opportunities Act of 1974; whether the court purported to be guided by the Act; and whether its findings and conclusions are sufficiently supported.

Prior to the passage of the Act it was clear that the mandate governing federal judges was to accomplish “the transition to a unitary, nonracial system of public education” in which “racial discrimination would be eliminated root and branch.” Green, supra, 391 U.S. at 436, 438, 88 S.Ct. at 1694. They were to make “every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation.” Davis v. School Commissioners of Mobile County, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577 (1971). And in so doing, “the scope of [their] equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Swann, supra, 402 U.S. at 15, 91 S.Ct. at 1276 (1971).

The Act disavows any intention to encroach upon the obligation of the courts “to enforce fully” the constitution, § 1702(b). Moreover, it places reliance on specific findings with respect to the efficacy of particular remedies in the “priorities” section, § 1713, and on a more general finding of the inadequacy of other remedies in § 1755. By explicitly leaving the district court the power to determine the adequacy of remedies, the *413 Act necessarily does not restrict the breadth of discretion of that court to determine what scope of remedy is constitutionally required. Thus the Act manifests a purpose not to limit judicial power but to guide and channel its exercise. In a sense it is a statutory “less restrictive means” guideline, endeavoring to ensure that substantial compulsory transportation be used as a last resort.

Our reviewing function remains the limited one of scrutinizing the record for sufficient factual support for the scope of the remedy, its reasonableness and its feasibility. See Swann, supra, 402 U.S. at 31, 91 S.Ct. 1267. The Act adds the factor that the district court’s findings must reflect a substantial consideration of the less restrictive means which Congress has required to be explored and used prior to resorting to compulsory transportation of any magnitude. 15 We turn therefore to an analysis of these two areas.

Initially, we look to whether the remedy imposed in this case reflected the channelling contemplated by the Act. On this question, there can be little doubt. The district court clearly purported to be guided by the Act’s mandate. In the course of presenting its plan, the court stated:

“Assignment of every student to the school closest or next closest to his residence, considering only school capacity, natural physical barriers or both, along with grade level and the type of education provided, cannot achieve substantial desegregation in Boston due to the geography of the city and racial and ethnic distribution in the city. 20 U.S.C. § 1713(a), (b), § 1714. Revision of attendance zones and grade structures, construction of new schools and the closing of old schools, a controlled transfer policy with limited exceptions and the creation of magnet schools have been used in the formulation of the plan here adopted in order to minimize mandatory transportation. 20 U.S.C. § 1713. The court finds, however, that some transportation of students to schools other than those next closest to their residences is required to remedy adequately the denial of plaintiffs’ constitutional rights and to eliminate the vestiges of a dual school system in Boston. 20 U.S.C. § 1702(b), § 1714(a).” 401 F.Supp. at 264. 16

We do not understand the Mayor to contest these findings; nor would there be any basis in the record for such a challenge. Rather, the Mayor’s theory goes less to which type of remedy (e. g., busing, magnet schools, etc.) was used by the court than to whether the remedial plan as a whole effectuated more desegregation (and as a result more busing) than was required. Since this argument concerns the district court’s discretion in determining the adequacy of the remedy, and therefore gains nothing from the Act which leaves that discretion unaffected, it must stand or fall upon those traditional principles of equity which would govern this issue even were the Act not in existence. We turn, therefore, to those principles and our traditional reviewing function.

It is important to understand what the court’s plan accomplished. Assuming that it involves the forced busing of up to — but probably substantially fewer than — 6,100 more students than the masters’ plan, what did it get in return? We see the plan as one involving relatively unskewed, contiguous, compact districts without extensive gerrymandering or satellite zoning. It should be borne in mind that compulsory busing *414 occurs only within, not between, districts. Although both the masters’ plan and the court’s plan leave the East Boston schools 95 percent white, the court’s plan eliminated the other virtually one-.race schools (as would have existed under the masters’ plan in West Roxbury, 93 percent white) and many racially identifiable schools (predictable for the masters’ Burke district, 63 percent black). It reduced the racial distortion in the three districts which, under the masters’ plan (as the new figures affected it), would have been markedly dispro-portioned. By reducing racial identifia-bility, the plan did more to avoid the dilemma of either denying a district’s pupils access to citywide schools or allowing the district to lapse back into a one-race status. That the plan was not perfectionist is shown by the parameters of its district ratios, the percentage of whites ranging from a high of 61 percent to a low of 40 percent, in a school population 52 percent white, 36 percent black, and 12 percent other minority. Moreover, a 25 percent deviation was permitted for each district school. This compares with parameters in the masters’ plan, when the newer School Department data are taken into account, which are substantially more extreme at both ends. As for the compulsory transportation, the maximum is a 5 mile, 25 minute trip, the average being 2% miles, 10 to 15 minutes.

Could the district court have reasonably found this additional desegregation to be constitutionally required? 17 To put it another way, does the court’s plan go beyond “every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation”? Davis, supra, 402 U.S. at 37, 91 S.Ct. at 1292. The “practicality” of white flight is not a viable basis for declaring the plan invalid. See part A 4, infra. Apart from the practicality of geography which induced the court to exempt East Boston from Phase II, we see no other geographical factor of significant dimensions. To the extent that funding is a problem, we note that virtually the entire expense of any incremental busing is fundable by the state Board of Education, which supports the court’s plan. See Mass.G.L. c. 15, § 1I; c. 71, §§ 7A, 7B, 37I(ii). The amount of additional desegregation which was “purchased” by the court’s plan was neither trivial nor disproportionately burdensome. When we ask ourselves whether a slight increase of maximum percentage of planned white enrollment at some schools, or leaving some elementary schools unaffected, or adding a few more magnet schools would achieve the consti *415 tutional minimum with less compulsory busing, we realize that the concept of the minimum cannot be identified with precision. Whatever prescription may be adopted by a judge, after months and years of consideration, it is doubtless always possible to make a case that something less will do. We have no basis for holding that the court exceeded its obligation to do all that it feasibly could to extirpate the effects of the constitutional violations over the years.

3. Alleged Overbreadth of the Remedy.

On January 20, 1975, the Association submitted a desegregation plan that was designed to restore the racial composition of the Boston schools to that which they would have had in the absence of any illegal official action. It contended that the district court was obliged to determine the extent to which the segregation in the Boston schools was attributable to official action and to limit the remedy to eliminating only that segregation. The factual premise of the Association’s plan was that the racial composition of most of Boston’s elementary schools and of two of its high schools, Charlestown and East Boston, is the result of residential patterns in Boston and not of the illegal acts of the School Committee. Its plan, accordingly, provided that these schools should not be affected by the court’s remedy.

Since the Association’s plan challenged the remedial guidelines contained in the district court’s order of October 31, 1974, the district court treated the Association’s document as both a motion to modify the remedial guidelines prescribed by that order and as a proposed desegregation plan. The district court held a hearing on the issues presented by the Association on January 23, 1974. In support of its plan, the Association offered to introduce evidence that would establish that population patterns, not illegal state action, caused the existing racial segregation in the schools in question. The district court denied the motion to modify the remedial guidelines, holding that the Association’s remedial theory was inconsistent with the controlling Supreme Court precedents. 18 The court also held that the Association’s desegregation plan was constitutionally inadequate and could not be considered by the masters. Finally, the court refused to admit the Association’s evidence, on the grounds that it was irrelevant since the only question before the court at that time was how to accomplish the greatest amount of actual desegregation consistent with the practicalities of the circumstances and that the motion represented an attempt to reopen the findings of fact made by the district court at the liability stage of the proceedings and affirmed by this court. The Association has appealed, contending that the district court erred, first, in refusing to frame the remedy in terms of the specific consequences of the proven constitutional violations, and, second, in rejecting the evidence that the racial segregation in particular Boston schools was not the result of any state action.

The central question on appeal is whether the district court erred in refusing to accept the Association’s remedial theory. In support of its theory that the district court must ascertain the extent to which state action caused the existing segregation in the schools and limit its remedy to . eliminating that segregation, the Association relies upon the language of the Fourteenth Amendment itself. Since the amendment prohibits only state imposed racial segregation, see Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883), the Association contends that a district court’s remedial power is limited to remedying the specific effects of the “state action” that formed the basis of the constitutional violation.

Although the theory possesses some surface plausibility, the Supreme Court precedents clearly establish that the district court was correct in rejecting the Association’s proposed modification of its remedial guidelines. The remedial principles set forth in Swann, Davis, and *416 Green do not tolerate anything less than ensuring that the effects of constitutional violations are eliminated, and we are certain that the application of the Association’s remedial theories could not eradicate the effects of state imposed segregation. 19

To appreciate why the Association’s remedial theory must be rejected, it will be helpful to consider the nature of the constitutional violation. In the first stage of this case, the district court found that the School Committee’s policies regarding the construction of new facilities, the use of portable classrooms, overcrowding, districting and redistricting, feeder patterns, open enrollment, transfers, and faculty and staff assignments “were all marked by segregative intent” and substantially contributed to the segregated character of dozens of Boston schools. 379 F.Supp. at 426-30, 433-37, 442-45, 455, 459, 466-68, and 472. The latter part of the district court’s , opinion dealt specifically with the School Committee’s defenses that the racial segregation in the Boston schools— which it conceded to exist — resulted from private residential patterns and/or its racially neutral neighborhood school policy. The district court found that Boston had never followed a true neighborhood school policy and rejected the defense, relying in part on its earlier findings. 379 F.Supp. at 469-74. These specific findings, many of which related to elementary schools, were the basis for the determination that Boston’s school system as a whole violated the Fourteenth Amendment. Although the defendants could have limited the geographic scope of the violation by proving that parts of the Boston school system were geographically unrelated to the rest of the system and had not been operated with “segregative intent,” Keyes, supra, 413 U.S. at 203-05 and 210-13, 93 S.Ct. 2686, the School Committee failed to satisfy this burden with respect to any portion of the system. We affirmed the district court’s findings and legal conclusions in their entirety, Morgan v. Kerrigan, supra.

The Association, in effect, argues that the trial on liability should be treated as the first of two battles, and that the second battle should involve a more particularized inquiry into the causes of the segregation at the individual schools within the system. Although the defendants failed, at the trial on liability, to persuade the district court that private residential patterns alone caused the segregation in the Boston schools, the Association maintains that the district court must, at the remedy stage, reconsider the effects of non-official action, determine the degree to which private action caused the existing segregation, and fashion a remedy that preserves the segregation that can be separated from governmental causation. This second battle would be considerably more complicated than the first. The logical implication of the Association’s proposal is that it would be proper for any group connected with any school to introduce proof that that school’s racial profile was only partially attributable to official action.' The district court could be faced with the task of making percentage findings as to every school in the district.

The short answer to the Association is that its position is squarely contrary to the remedial principles of Swann, Davis, and Green. 20